2. Appellate Standards for U.S. Attorneys' Offices

PURPOSE

Chapter 2-5.000 of the Justice Manual establishes minimum standards for all United States Attorneys' Offices to ensure the proper handling and supervision of appellate work. This commentary to those standards is designed to aid in the implementation of these appellate standards.

SCOPE

These standards apply to all United States Attorneys' offices (USAOs).

BACKGROUND

Appellate briefs and arguments by the United States must be of the highest quality and integrity because United States Court of Appeals decisions are binding on the United States, and its agencies, officers and employees in each Circuit. Appellate decisions may also have nationwide impact, and are the precursors to binding Supreme Court decisions. These standards seek to raise and ensure the quality of appellate practice by setting some minimum requirements that every office, no matter what its size, should be able to implement.

APPELLATE SUPERVISION

The first standard requires that the United States Attorney designate an AUSA to supervise its criminal appellate matters and an AUSA to supervise its civil appellate matters. The AUSA(s) supervising appellate matters will have the duty and responsibility both to improve and maintain the standards of appellate practice, and to be the liaison between the office and the Department on appellate matters within his or her area of responsibility.

Each United States Attorney may determine (1) whether to designate the same AUSA to supervise both civil and criminal appellate matters, or whether to designate separate AUSAs to supervise civil and criminal appellate matters; (2) whether an AUSA who supervises appellate matters should have other non-appellate supervisory or line duties; and (3) whether an AUSA who supervises appellate matters should be compensated as a supervisor. Pursuant to USAP § 3-4.534.001, Administratively Determined (AD) Pay Handbook § 6.2, appellate supervisors may be compensated as supervisors even if they do not supervise six or more people. These determinations should depend on the size and organization of the office, and the time and effort necessary for an AUSA supervising appellate matters to ensure the proper handling and supervision of the office's appellate work.

It is recommended that each district designate an "appellate chief" because such designation can be beneficial, particularly in assuring the ability of the supervisory appellate AUSA to effectively carry out his or her duties. The title signifies authority and expertise in appeals and prompts others, both inside and outside the office, to consult and confer with such person on appellate matters. A United States Attorney, however, may designate another title for the supervisory appellate AUSA that is most appropriate for the district.

Regardless of whether a district uses the "appellate chief" title, it is essential that at least one AUSA be assigned supervisory authority on appellate matters who has significant appellate experience. AUSAs supervising appellate matters should monitor and communicate significant legal developments to AUSAs within their offices, ensure that appellate work is considered and reviewed in performance evaluations, ensure consistency in the appellate positions taken by the office, report adverse decisions to the Department, and prepare or review all appellate recommendations.

PREPARATION OF APPELLATE BRIEFS

This standard requires that for appeals handled by USAOs, an AUSA or Special AUSA be responsible for preparing the appellate brief, and that he or she be familiar with all pertinent facts, law, and arguments. The appellate brief is the central focus of an appeal. Delegating its preparation to agency counsel, a paralegal, or a law student, without adequate guidance and supervision, may jeopardize the quality of the brief. Without appropriate guidance and supervision, delegation also shifts the initial burden of accuracy to someone who may not be licensed to practice law, who has not taken the government attorney's oath, who will not be able to argue the appeal, and who cannot sign the brief as required by Federal Rule of Appellate Procedure 32(d). This standard does not prohibit all use of agency counsel, paralegals, or law students, but in making judgments about the proper use of agency counsel, paralegals, and law students, the office must consider the competence and experience of the individuals involved, as well as the importance of the case. Any part of a brief that has been drafted by someone who is not an AUSA should be identified for the AUSA supervising appellate matters, another appellate AUSA, or an AUSA with significant appellate experience who will review the brief (the "brief reviewer"), even though the AUSA or Special AUSA who will be signing the brief is fully responsible for the draft that is submitted to the brief reviewer.

United States Attorneys and their supervisory AUSAs may request that an appeal be assigned to an appellate attorney in one of the Department's litigating divisions.

REVIEWING APPELLATE BRIEFS

This standard requires that appellate briefs receive review by the AUSA supervising appellate matters, another appellate AUSA, or an AUSA with significant appellate experience, to improve the clarity, persuasiveness, and overall quality of the brief, and to ensure that the positions taken are legally correct and consistent with the interests and positions of the United States, and the required positions of the Department. This reflects both the central importance of the appellate brief and the fact that, unlike trial briefs, appellate briefs are highly likely to have an effect on other cases and districts. To ensure adequate review, the brief reviewer should always read the opposing briefs, and is encouraged to review important portions of the record and key legal authority. A common sense approach will, of course, inform the review process so that the reviewer may adjust the degree of scrutiny of the record and legal authorities according to the issues presented, and the level of experience, skill, and reliability of the AUSA or Special AUSA responsible for the brief.

PREPARATION FOR ORAL ARGUMENT

This standard requires that the AUSA or Special AUSA timely inform the AUSA supervising appellate matters of all oral arguments and receive assistance and review on oral arguments. This pre-argument preparation is intended to improve the quality of the arguments and ensure their consistency with the positions of the office and Department. To achieve these ends, the discussion should always include, at a minimum, the AUSA supervising appellate matters or the brief reviewer. Adding other attorneys to the discussion, and requiring the arguing AUSA or Special AUSA to answer questions as he or she would in oral argument, better prepares the attorney for argument, and is encouraged in all cases. It is required where the argument is of heightened difficulty, where the interests of the office are particularly acute, or where the issues involve new or hotly contested legal issues, or recurring issues of constitutional or statutory interpretation that increase the likelihood that the court of appeals will issue precedential rulings of importance to the United States. Those participating in the discussion should review the briefs beforehand, and the discussion should be conducted sufficiently in advance of the argument to permit the AUSA or Special AUSA to react to the input received and to conduct any resulting research or preparation.

APPELLATE TRAINING

This standard requires that AUSAs and Special AUSAs handling appeals receive the necessary training on appellate practices. All AUSAs and Special AUSAs who handle appeals can benefit from training on appellate practice provided by the experienced members of their own office, and by the appellate courses offered at the National Advocacy Center. All AUSAs and Special AUSAs are encouraged to attend training on appellate practice at appropriate points in their careers. Even if all AUSAs and Special AUSAs cannot attend the NAC courses, offices are encouraged to send sufficient attorneys so that the benefit of these NAC courses can be shared within each office. AUSAs supervising appellate matters are also encouraged to receive training, including attendance at the Appellate Chiefs Conference. Paralegals and other staff members who assist with appellate matters are likewise encouraged to receive training so that they may better assist in the handling of appellate matters within the USAO.